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tv   [untitled]    July 31, 2013 6:00pm-6:31pm PDT

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neighbors who oppose the height of this budget and we respectfully request that you deny the appeal and approve the action of the planning commission. and before i address the arguments i thought that it would be helpful to get the background because we have been talking about this project for a long time and we have never been able to present it to this board. the architect is present if you have questions. 30 mission street and it consists of three parcels and the building that is owned by project sponsor and it has been identified for over 20 years for the future home of the museum and the garage and the agency parcel and the jessy square garage will be conveyed by the agency to the agency and to the project sponsor for agreements that were approved earlier and that will complete the cultural district that was part of the redevelopment plan.
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and the project would rehab tait the building, and construct an adjacent 480 foot, 43 story teller and provide a permit home and include up to 190 residential units and 4500 feet, and operated by the mu see sxum it the project has been approved by every city body, and there are many, including the historic preservation and the planning department and the park and rec commission and approval by the board of supervisors. and they have challenged every appealable action and every non-appealable ones and each time using the appeals as a vehicle to challenge the height of the project no matter what the substance of the permit at issue and now they used thed 309, appeal process to again, challenge the 295 actions tonight that you determined
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were not the proper subject of the jurisdiction, every city body that has had the justicersing dition over the height and shadow has approved it, in addition, the project was substantially arise to address the concerns raised by the community, as originally proposed the projects would have been 605 feet tall and cast over 950 square foot hours on union square and as a result of the process, the project was reduced, to 480 feet, and cutting the shadow on the union square by 75 percent from the original proposal. and the city has properly determined that the project would not have a significant shadow impact within the meaning of both proposition k and sequa and in fact the shadows on union square would never fall after 9:15 a.m. and would fall on a few weeks a year at the early hours in the morning where the park is in low usage and thus the eir which was held by the board of
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supervisors concluded that it would not have a shadow impact on public open spaces including union square and the planning commission and the park and rec commission to determine that the park would not have a significant and adverse impact on the use of the square of prop k and appellants to the process to revisit the city decisions but the appeal lacks merit. as you know the construction of the new projects downtown and provides for the review of the design. and confirmation of open space requirements and for authorization of certain exceptions to the planning code. the planning commission granted the determination and exceptions for this project. in order to reverse that planning commission action, the section 309 requires that this board find either that the planning commission misinterpreted the planning code or that the planning commission abused its discretion pursuant to section 309 not to proposition k. this appeal does not allow a
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single interpretation of the planning code or a single abuse of discretion pursuant to section 309 and meritless and first as you know the appeal makes the attacks on the planning commission's actions to increase the shadow budget on union square which you previously determined tonight are not within your jurisdiction and second, the appeal challenges, the planning commission determination that the impact on union square would not be significant and making an, allocation to determined not to be in the jurs dition, to the extent that you are interested in the shadow numbers and what is actually allocated and we spent a significant amount of time with the planning commission and i have an exhibit that i can show you if you are interested that demonstrates that. no? not on? >> can you see that up there? >> referenced it the overhead. >> so this exhibit, it just to give you the percentage and
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demonstrates exactly the total available sunlight, the percentage that gives the macy's adjustment and i have a series of exhibits here that go all the way through to include such a budget that was allocated to transbay and so you can all of them are there and before you tonight just in case it is something that you wanted to see in response to these exhibits. and finally the appeal attacks the planning commission's action and each of these claims lacks merit. and first, the connection 295 determination is not a significant threshold and even if it were, they are comparing apple and oranges and the eir with the project itself would not have a significant shadow impact it was a cumulative impact that was determined to be significant. and prop k does not have a cumulative measure and so it is really just the project impact
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and so there was inconsistentcy to the finding, and the shadow budgets are not measure to sequa and if there was a project impact and a measure and the planning commission, i will wrap up. >> okay. >> okay. briefly just to address the 309, because that is what is properly before you, the planning commission either misinterpreted the code or abused his discretion in granting the 309, they properly authorized them and reviewed the decision and it is not alleged to the contrary and so we urge you to deny the appeal and finally because it will be submitted to a rebuttal i would like to submit our rebuttals as well. >> thank you. >> and are there multiple copies or just the one? >> is there enough for the board?
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>> i apologize i don't have enough for all of the board at this time. >> okay. >> just this planning do they have a copy? >> yes. we can hear from planning now. >> good evening, vice president lazarus and my name is kevin guy with the staff and i would like to present an overview with the actions that occurred on the project date. prepared for the project was certified with the planning commission on march 24th of this year and three separate appeals of this were rejected by the board of supervisors on may 7th. and a number of entitlement actions for the project were considered for the planning and recreation and park commissions on may 23rd. both commissions adopted findings under sequa and made
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determinations under planning code 295 related to the shadow and union square, the planning commission offered findings and approved a section 309 downtown project authorization and request for exceptions under the 309. and the board of supervisors approve a high change and special use district for this site. >> on july 23rd, the board of supervisors rejected the appeal on this project and the board also approved the proposed for the site as well as the height change from the existing 400 to 480 feet and approving the legislation, the board found that the project was generally compatible with the scale of the development in the vicinity and that they were appropriate given the change in the project as well. the planning staff has submitted a written brief surrounded by the what was given to the appellant, and i
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would like to comment to the point about the submissions and the recreation and park and the planning commissions abusing the discretion and addressing the shadow budget for union square and so when the voters adopted proposition k, that language, specifically authorized and empowered the recreation and park commission and the planning commission to jointly adopt implementation criteria for the section and what will become 295 or proposition k, and in 1989, the commissions did that and those criteria that were contained within that memo are both qualitative and quantitative criteria and so with respect to the quantitative, the commissions took a look at a select number of parks within the greater downtown area and for a few of those including union square and identified specific amounts of shadow, and they believe could be tolerated on that park or should be allowed under the certain
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conditions but that was one part of it and there was also a qualitative criteria that were adopted with respect to how to evaluate and consider new shadows on parks. and in the qualitative criteria has to do with the duration of the shadow and the time of year and the time of the day of the shadow and the area of shadow and the area that is affected, how that area is used. and in the case of union square was identified as a park with heavier midday usage and less usage in the early morning and evening hours. and with respect to the history on the changes to the shadow budgets for the district plan, it is true that for union square and for a number of parks that would have been affected by the transit center and the buildings and acting to 2012 to increase the shadow budgets and just to touch upon the accounting issue, the increase to the union square did account for the fact that
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the 690 market project did cast the new shadow on the union square and if it had not back in the increase on the macy's expansion project approved in 1996, and so, essentially what you are left with, are and increased budget and the number of spaces with that allowable shadow given over to projects in the transit center plan area and so that request with outside of the plan area was to raise from a existing budget of 0 to an amount of shadow that would accommodate the shadow cast by the project and make or incorporate the additional sunlight that occurred as a result of the macy's project and in making the findings they did evaluate the criteria and
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found that it would not result in the adverse impact to the use that have park given that that was for a limited amount of year for basically four weeks in october and november. and then, four weeks in the spring as well, and in the early morning hours for more than one hour per day. and so, all of these were, all of these were done under this sort of authority, if you will or the direction that the voters gave initially when adopting prop k and directing those commission to adropt implementation criteria and giving them the framework to evaluate the aspects of the shadow that might be cast on the new parks under the jurisdiction of the park department. and i would be happy to answer any other questions that you may have with respect to the shadow questions, section 295 implementation or with respect
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to the 309 approvals for the project. thank you. >> but that is with respect to the urban design issues. >> certainly, 309. definitely touches upon it. >> okay. >> talked about and i am sure that it is a fairly extensive history on the development of this particular project and this particular design what did the department go through with the developer. in terms of various iterations if you will besides what was listed in the ir, were there actually designs that addressed as of right power verses as of one that cast no shadow? >> good question, going back to the prior of the eir this
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project has been through a number of design iteration and it started out at a different form and the height and the proposal of 605 feet. we wanted to address the height of the building and also the concerns about the amount of shadow that was cast by the initial proposal on union square and other open spaces and through the course of that internal design review process, the project has been incrementally reduced in height from 605, approximately down to 580 and 550 and 520 and ultimately 580 feet that was approved by the planning commission, and the eir as well and analyzed a number of different alternatives and one of those being a 350 foot tall building and that would not have cast shadow on union
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square and although it would have cast the shadow on other open spaces and that was rejected in the findings made by the planning commission. and based in part as of a sight of a project sponsor and the appellant, the issue of the economic and also on the issues as well. and analyzed in the ir and deemed to be or certified to be adequate with the process and the various alternatives and the commission did make the findings to reject the alternatives and make the statements overriding considerations. >> okay. >> the sud addressed some of the exceptions, i can't recall too many projects that seemed to exist that had no design exception. and meaning that dealing with the podium height and other things.
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>> right. this and in this particular case, they are the requested exceptions where you could argue was perhaps something of a design issue, but it was granted an exception, and ground level wind currents and the residential parking and there were more traditionally designed topic areas and the brilliant exposure and the limitation and both limitation and things like that, that were identified as areas of the
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>> we can take public comment as a reminder of those who are the officers of the associations that filed this appeal as well as the named individuals should not be speaking under this public comment opportunity and anyone else is free to. and there are more people other than the two who have stood up i ask that you come forward and line up on the far wall to give us a chance to move this through. >> good afternoon, my name is (inaudible) and i am here representing the friends of the mexican museum and you heard from the lawyers and the planning and so let me give you the community perspective. 20 years, and in the last 20 years, the jewish got built and the african americans and the museum of the arts got built and the center and you know the rest. we have been waiting for 20 years. 20 years. and in those 20 years, we saw a
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600 building and i look at it as a super burrito that got down sized to a regular burrito and got down sized to the mini at 480. because these people that are concerned, not about shadow, but they are concerned about the views, and that is the real issue here. is the views, and so, we look at, the issue of shadow and they want to use that as the issue, okay. and why is it that none of it went to any of the hearings to protect when transbay went through the process. not one of them attended a hearing, and the attorney was in that hearing and 9 projects got approved. and all the way through from city planning to the board of
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supervisors. and as high as 1,000 feet. and 900 feet, 800 feet, and 700 feet. and 600 feet. and yet, this has been trimmed down and trimmed down and trimmed down and they picked on this project. now they are using the shadow as an excuse? >> they were not protecting the shadow that these transbay projects have created. if you look at the shadows, that the transbay has created, 9 parts are affected. here we are talking about 0.06. i think as a latino being born and raised here in san francisco, this is shadow. our people have been in the shadow. and we have been the farm workers, we have been the
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waiters. and you know, all of the work that we do. for this city, and the rest of this country. so today, i ask you look in your conscious and do what is right, thank you. >> next speaker please? >> president lazarus, and commissioners. my name is rick smith and i live at 680 mission which is across the street from the project site and i am against the appeal and i am grateful for the potential of the coming of the mexican museum in the neighborhood and for the negotiated and the pedestrian open space benefits that were done as part of the purchase agreement and both president chiu who has expressed serious concern about the dancing shadow in union square and the enforcement of prop k in parks throughout the city and the concern for this project i heard expressed with the land use commission and the july 23rd board of supervisors meeting has been that the
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parties be able to resolve the differences and as we heard she voted for the project to move forward, thank you. >> thank you. any other public comment? >> okay, seeing none, we will open rebuttal and you have three minutes. >> thank you, members of the board. the primary point that i want to make is that my clients don't oppose the mexican mu museum and it is an interesting strategy for the developer to align with a worthy cause with the museum because the developer can stay in the background while the eloquent and worthy allies of the development make the case for the developer. but let's not forget that the developer stands to make at least $120,000 million by his own economic analysis estimate. as far as shadow is concerned, this is not really a legal
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argument and more of a public relations issues that have been raised the transbay project and the transit center project had seven buildings with 0.19 percent to allocate between them which is less than 0.03 each and this is one building, 0.06 and so in terms of one building, occupying or causing shadow, on this park, it dwarfs any of the other buildings in the transit center project area plan. thank you. >> thank you. >> >> i think that the arguments are well stated so i will not go through rehashing those and i think that you have heard a lot of the additional detail that i did not have time for, for the planning staff and just in terms of the policy comparison to transbay i just
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wanted you to be aware that this project as a ro bust benefits package that has been negotiated both of the result of the property convey ens from the agency and as a result of the planning department process and without getting into details, there is public benefit package associated with that project is amount 120 million and includes the substantial funding for the mexican museum and the shell at no cost of the city and museum but also a 5 million dollar operating endowment and what is the highest in the city and the additional 8 percent on the 20 percent requirement will be made available for affordable housing and the project will also reteam approximately 43 million dollars worth of agency and city debt related to the parking garage and so the public benefit package here is undeniably extremely robust and
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i think also, comes into consideration, thank you. >> thank you. >> mr. guy. >> i don't have anything further to add but again i am just available to answer any questions that you may have on the 309 appeal or the section 295 process. thank you. >> thank you. >> so commissioners, baring any further questions, the matter is submitted. >> i guess that the oldest always get to go first. >> and the either this is the interesting case that comes before us in the sense that it is complexities are a littles bit different than the issues that we face here.
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and to digest the years of effort and processes into one meeting that as of a few hours at the most and it is quite interesting for the decision making that can occur. on the other hand the question of what our charge is to see whether planning commissions erred. or whether they abused their discretion or powers. and that we can respond to on a fairly subjective basis and applying it however to a cost process and a project like this, is it was not so easy. and the spending 6 hours to
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review the package does not do that much good in terms of i am trying to understand the total process that has been through it and however a couple of things have become clear in my mind, any way. one is that the issue of the shadow of the additional shadow and therefore, the correlation with the over all envelope and the scope of the development that was allowed i think was well addressed by the commission, i think that it was it was well addressed by staff. and i have been accepted that you produced the issue and one of the other issues brought up here and it was one that was
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very clear in my mind and looking at it. and the specialty consultants on economic analysis real estate projections and allowed those and i found disagreementwise both sides and both in terms of the good to know analysis, and done by the planning department. and i found that a couple of things that seriously contrary to the real estate position in san francisco. but, all of that said, either it appears that the did not err or did not abuse and i am prepared to deny the appeal and up hold the 309 determination.
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>> i don't have much more to add. i am in agreement with that conclusion. and i also agree with challenging case to look at and very time consuming but i did not really see anything that would persuade me that there was a misinterpretation of the code. i go that it took eleven hours and not six. >> and after going back and forth and that adds to the additional five hours. >> they did not abuse or err in their power as well.
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>> those that are interpreting the ordinance and how it will be implemented and how it seemed to me that that was given to the due consideration and that the qualitative criteria were evaluated and to the determination. and it is not a basis for over turning a decision. >> i believe i am prepared to move that the appeal be denied that the 309 determination be upheld and i believe that through that, we would also have to adopt sequa finding? >> that is correct. >> and that would also be good to state a basis there was no error of interpretation or abuse of discretion and i do
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have draft findings for the board. and if you would like i can read them into the record and if they are acceptable we can include them as the board's findings. >> are they similar to what was in the project sponsor's brief? >> i don't believe they are. i think that they are unique to what this case... >> why don't you read it. >> i will try to read quickly. >> so having heard all of the public testimony and reviewed the record in this matter, the board of appeals denies appeal 13-070 protesting the issuance of planning commission 18894, approving a planning code 309 determination of compliance and granting of acceptance for the mission street mexican museum towers project for the following reasons, based on the record which includes but is not limited to the environmental impact report for the project and the planning department


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